29 August 2011

There are two major ethnic groups in Virginia. The 2010 census states that Virginia is made up of 19.4% Black Persons and 68.6% White Persons. Interestingly, there is a disproportionate rate of overdose deaths among Whites and a less than to be expected (from pure demographic percentages) rate of overdose deaths among Blacks.

Of course in pure numbers the large majority of overdose deaths are Whites.

Note that among Whites the highest number of overdose deaths come from prescription drugs. It is over 4 times the amount of deaths from always illegal drugs.

27 August 2011

Yesterday, I put up a humorous post about the "theft" of $5 million dollars worth of computer information masquerading as art. Or, perhaps, it actually is art (all art is a variation of the Emperor's New Clothes). Anyway, the point is that shortly after I put the post up, I got an anonymous email fussing at me

"Copyright infringement is not theft. Look it up."

Okay. I'm always a sucker for a research question.

Under Virginia law computer theft crimes are in Title 18.2 - Crimes and Offenses Generally, Chapter 5 - Crimes Against Property, Article 7.1 - Computer Crimes. Of course, nobody refers to the statutes in that manner, so if you're looking them up just start at § 18.2-152.1.

At first blush, the pertinent statute would appear to be 18.2-152.8 which states as follows

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human

Of course, there will always be the problem in a larceny case that larcenies require the "taking with an intent to permanently deprive" an item from the owner. Thus, the more pertinent crime is probably found in the Computer Fraud statute § 18.2-152.3:

Any person who uses a computer or computer network, without authority and:

. . .

3. Converts the property of another;

is guilty of the crime of computer fraud.

Conversion is usually a civil action, but it has been pressed into service here because it does not require larceny's "taking with intent to permanently deprive." Instead, it is the use of the property of another, without permission, for one's own benefit and inconsistent with the owner's rights. And, of course, property is defined for us under § 18.2-152.2 as

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human

The reason you don't see prosecutions under this statute is fairly simple. It's difficult to prosecute this sort of crime because of the dispersion of the parties involved. In other words, it ain't local. If a kid at Pitcairn College downloads 50 songs illegally, the actual property owners (whether they be record companies or artists) are going to be scattered around the United States and abroad. It is going to be difficult to get them to all come to Virginia to prosecute a misdemeanor. Thus ownership becomes difficult to prove. Value could also be difficult to prove ($200 or greater is a felony). Is a cruddy 32 kilobit per second mp3 download the same value as the uncompressed CD?

However, when you've got someone admitting to illegally downloading $5 million dollars worth of data illegally, you really don't have all those difficulties. They've admitted the illegal act and the value. It doesn't get much easier to prosecute than that.

23 August 2011

When you travel outside the Appalachian area you realize fairly quickly that people don't realize the danger from the abuse of prescription drugs. Nevertheless, when you examine the statistics in the 2009 Medical Examiner's report it becomes obvious that pills are the greatest danger faced by all areas of Virginia.

Area

Overdose by Prescription Drug

Overdose By Illegal Drug

Central

99

51

Northern

85

40

Tidewater

68

29

Western

181

10

Of course, the western part of the Commonwealth (the mountains) has the worst problems with prescription drugs compared to always illegal drugs. However, in the rest of the Commonwealth the prescription drug problem causes approximately a 2:1 level of deaths compared to the always illegal drugs. Nevertheless, you seldom hear about this problem in the rest of Virginia; they don't seem to realize the depth of the problem yet.

For those of you who might be vitiated because people commit suicide with prescription drugs, the ME's report also tells us that the number of accidental deaths (overdoses) for prescription drugs in 2009 is 322. There were also 103 suicides by prescription. The 322 prescription overdoses compare well over a 2:1 ratio with the number of overdose deaths from always illegal drugs (128).

22 August 2011

The 2009 Virginia Medical Examiner's report is online and these are the 5 counties with the highest percentage of drug deaths:

1. Patrick County (green on map)

2. Radford City (red on map)

3. Bland (yellow on map)

4. King and Queen (light blue)

5. Tazewell (dark blue)

As you can see by the map that follows, most of these counties are in Southwest Virginia.

It could be argued that because of lower populations a few deaths in a county can skew the results by presenting a larger proportion of the population than many deaths in a larger population in a city such as Richmond. This is true and King and Queen County is probably on the list because of that. However, when the higher percentages of deaths due to overdoses cluster is is indicative of a wider problem. As well, if you go back through the reports from the years before 2009 you see that the higher percentages of drug deaths consistently occur in Appalachian areas. In fact, this is the third time Tazewell has been in the top five in 7 years. Here's a map of previous distribution of highest death rates by drugs.

"They're not doing a darn thing. There's no study that takes 12 years. When you think how many people have died of hydrocodone overdoses, it's inexcusable."

Anybody who deals with this as part of the criminal justice system understands the problems that this has caused. A larger portion of doctors et al. seem to have caught on that oxycodone is a massive problem, but they don't seem to have caught on to this fact for hydrocodone. The stuff seems to get handed out like candy and abusers are everywhere. Get off the stick. Hydrocodone and acetaminophen needs to be a schedule II.

This garbage is poisoning large portions of the country. It's even getting to the point that companies can't hire people.

20 August 2011

There are about a million shows which have graced our TV's about lawyers ranging from comedies to soap operas. Few of them actually show a realistic view of the life of the law in or out of a courtroom. These are the three which I think come the closest to reality.

1. The Practice:

I've never watched the entirety of this series. It was a soap opera and courtroom drama. At first, the courtroom part played a more important part. The first few seasons showed the reality of cramped offices, money problems, manipulative and unrealistic clients, interactions between defense attorneys and prosecutors, and hard fights in the courtrooms. However, after a certain point it became more and more of a soap opera as well as making the protagonist firm undefeatable in murder cases and making the cases more and more outlandish. Nevertheless, the first couple seasons are worth watching to get a feel for how things feel when you are practicing.

2. Raising the Bar:

This show gives you the feel of how things work for lawyers who represent indigent defendants. It really gives you the feel for how indigent defense attorneys see the world: hostile judges, unyielding prosecutors, selling deals to clients - despite their oath that they are innocent - because it's a better deal than they will get when they are probably found guilty, etc. It was flawed in its representation of how things work in the prosecutor's office and all the clients were entirely too innocent. Still it's worth watching both seasons (which are available on YouTube).

3. Night Court:

Sometimes humor is the best representation of reality. Talk to an officer and he'll tell you that about Reno 911. Well, Night Court is our Reno 911. Sure, it's over the top and silly, but as a representation of how things work in a misdemeanor court, it's spot on with the weird and petty things that come before the court and the black humor everyone develops to deal with it. And besides, it's fun.

17 August 2011

I am prosecuting a case wherein the primary defense is "It wasn't me."

The first witness testifies that he got jumped outside a bar and hit by a drunk guy who had brown hair and was approximately the defendant's size and weight, but the witness did not see the face of his attacker because the witness ran away as soon as somebody came out of the shadows swinging and cussing at him.

Witness number two testifies that, some time before witness one came out of the bar, witness number two came out of the same bar and a drunk guy came out of the shadows cussing at him and tried to hit him, but that he just kept moving and the guy missed him. Witness number two saw the face of his attacker and identifies him as the defendant.

At this point, the case is looking somewhat tenuous as to identification and I'm a little worried. Then the judge asks the witness which bar this happened at. Unbidden, the defendant blurts out, "We were all at Smitty's Bar, Judge."

11 August 2011

I'd like to hone in on that a little bit. Since time immemorial, people have given defendants bad legal advice. Usually, it's been Uncle Louie or the guy at the barber shop or even the guy in the next cell over. These people have always had more credibility to defendants than their defense attorneys. After all, Uncle Louie has been to jail seven times and he's talked to at least a dozen attorneys with all the times he's been charged; surely he's got more accumulated knowledge than a mere attorney.

The interweb has just added another dimension to this. Scott's right. If you search the web you find any number of sites claiming to give out free advice - advice which almost always seems to be substandard, incomplete, or even naive. It's another layer of garbage the defense attorney has to fight his way through in order to convince his client of the realities in his particular case.

Personally, what bothers me the most is when an attorney answers a question from someone in a different State. I hate to tell this to all of you out there, but it doesn't work in Virginia like it does in your State. We kept the common law (no MPC here), we have common law rules of evidence (not a set of rules based on the federal rules), required discovery is pretty much the constitutional minimum (no witness list, no statements from Commonwealth witnesses), juries sentence (usually hard), we have no parole (life means life & other felons serve 85%), and most every jury trial that's not a rape or murder takes a single day. There are a million differences between the way it works here and the way it works where you are. When you confidently tell a person online that the law is X, Y, and Z and the trial will proceed A, B, and C you are probably absolutely correct for your little corner of the universe. You are absolutely wrong as to Virginia.

There's a story I when I first started practicing criminal law in Virginia. A Big City Lawyer had come down from somewhere up North to try a cocaine distribution case, pro hoc vice. He walks into the Virginia courtroom on the day of trial and states imperiously to the judge, "Your Honor, I don't see jury selection taking any longer than two weeks in this case." The judge looked down from the bench and said, "You're right counselor. Jury selection will be done in one hour. Opening statements will take up the next 30 minutes. Then will come the evidence and I expect the jury to be out by 4 pm or so. We should have the trial finished today." And, so the story goes, the trial was done that very day and Big City Lawyer went back North in a state of shock.

Now, I think a good portion of that story is apocryphal. However, it does reflect the reaction I get from most lawyers from otherwhere when I explain how juries are done in Virginia. It also demonstrates how different judicial systems are from place to place.

I'll make a deal with ya'll. If you don't give advice to people from Virginia about criminal law, I won't start telling them how everybody should only get convicted of possession in the 7th degree. Deal?

10 August 2011

An emailed question: "I was wondering if you might write something about a possible innocent possession defense in Virginia. There is such a defense in D.C., narrowly circumscribed though it may be, and a jury instruction supporting it. But I can't find anything in Virginia."

First, I had to figure out what was meant by "innocent possession." Looking at D.C. cases, it seems to be the possession of a firearm while possessing drugs without a nexus between them. The federal statute dealing with this is 18 USC 924(c)(1)(A), which states in pertinent part

[A]ny person who, during and in relation to any . . . drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such . . . drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years

The problem is that Virginia Code sec 18.2-308.4(C), which covers the same ground in Virginia, has no nexus requirement.

It shall be unlawful for any person to possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manufacture, sell, or distribute a [drug]. [A]ny person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of five years.

At one time, the Virginia Court of Appeals had inferred a nexus, but this was rejected by the Virginia Supreme Court in Wright v. Commonwealth, NOV09, VaSC No. 090308. Subsections A & B of this statute contain language that the possession must be "with knowledge and intent", but the General Assembly declined to include that language in subsection C.

So, in my opinion, innocent possession is not going to be a defense in Virginia.

After reading Jamison Koehler's post on innocent possession of a firearm, I see that he is talking about a D.C. exception to any possession of a firearm charge so that if (1) there is a lack of criminal purpose, and (2) the gun is possessed as an affirmative effort to further "social policy underlying enforcement" it is not illegal

My answer now shifts to, I don't think this defense exists, but you would have to look at what ever possession statute the defendant was charged under. If there is no intent element in the specific statute then possession is strict liability. SeeEsteban v. Commonwealth (strict liability when a teacher accidentally brings a pistol to school in her purse). For instance 18.2-308 states

If any person carries about his person, hidden from common observation, [various weapons], he shall be guilty of a Class 1 misdemeanor.

Other firearm statutes require "to knowingly and intentionally" possess (§ 18.2-308.1:1; 18.2-308.2) or to possess "with knowledge and intent" (§ 18.2-308.4(A) & (B)). So, possession would not be illegal under these statutes if the firearm was possessed by accident or was planted on someone.

However, I can find no intent in a Virginia statute which matches the D.C. innocent intent doctrine. The nearest thing I can find the "necessity defense." This defense requires (1) a reasonable belief that the action was necessary to avoid an imminent threatened harm and (2) a lack of other adequate means to avoid the threatened harm and (3) the evidence must prove a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm. Waller v. Commonwealth, SEP08, VaApp No. 1024-07-3. A generalized fear that someone will harm a person at some time is not enough to possess a firearm. Byers v. Commonwealth, NOV01, VaApp No. 2269-00-3. However, if someone is under fire, runs to his father's shed, and gets his father's shotgun to defend himself and his girlfriend a necessity instruction can be required. Humphrey v. Commonwealth, OCT01, VaApp No. 1982-00-2.

09 August 2011

In Virginia Code sec. 9.1-910 does "two or more offenses for which registration is required" mean two offenses with time in between offenses, two different offenses, or any two offenses regardless if they were part of one occurence?

As I read it - AND THIS IS STRICTLY MY OPINION, NOT LEGAL ADVICE the language is not ambiguous. Here's the statute:

Any person required to register, other than a person who has been convicted of any . . . (ii) two or more offenses for which registration is required [may petition a court after 15 or 25 years to be struck from the sex offender registry.]

It simply reads "two or more offenses." There are no qualifiers added. It means conviction of two charges, however they may have occurred or whenever they may have been convicted.

A quick look at other Virginia statutes which deal with multiple sexual offenses seems to support this interpretation. 18.2-67.5:1 (3d misdemeanor sexual offense) states of the prior two "each such offense occurring on a different date." 18.2-67.5:3 (punishment of a subsequent sexual assault) and 18.2-67.5:4 (punishment of a subsequent violent sexual assault) both state the second offense must occur "when such offenses were not part of a common act, transaction or scheme, and [the defendant] has been at liberty as defined in § 53.1-151 between each conviction." The presence of this language in the other statutes indicates that the General Assembly includes this types of language when it intends to separate the offenses in some manner. Therefore, 9.1-910's lack of this language would indicate the General Assembly did not intend to put this kind of separation between the offenses.

05 August 2011

This is from early this year at the University of David A. Clarke Law School. It was a symposium titled "Life After the War on Drugs." Most everyone who spoke talked about making drugs legal and regulated. When I stood up, I felt like I should have started out by saying, "and here's the other side." Anyway, it was an interesting seminar. This is just my presentation and the questions I participated in (the question I ask is to a student who was propounding the idea that a fellow drug user who reports another's overdose should get a Good Samaritan exception to the drug laws).

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.